Briefing Requests, Including the First Appearance of the New Pro Bono Program

The Texas Supreme Court requested briefing on the merits in four cases last week:

In re Gonzales, No. 07-0554. Docket sheet. This originally pro se mandamus petition was referred by the Court to the State Bar’s pro bono program. On the same day that Rebecca A. Copeland (who I am guessing was appointed through that program) filed an appearance as counsel for the relator, the Court requested briefing on the merits. ((To my knowledge, this is the first appearance by a lawyer appointed through this new pro bono program. The Court made a similar request in another pro se mandamus action, In re Hall, No. 07-0322, but no lawyer has yet made an appearance for the relator in that case.))

Marks v. St. Luke’s Episcopal Hospital, No. 07-0783. Docket sheet. COA opinion. This medical-expert-report case is on its second trip up to the Court. The first judgment by the court of appeals was vacated and remanded in light of intervening precedent.

The Court also requested expedited briefing in In re K.C.B., No. 07-1068 [docket sheet], a parental termination case. The Seventh Court’s opinion is here. The court of appeals refused to reach the parent’s arguments because of a procedural rule that it acknowledged was “harsh[],” explaining that the rule “needs to be addressed by the legislature.”:

However, before we may address any of the contentions of appellant, we must determine if they are properly before this court. This appeal is governed by the rules of the Supreme Court regarding accelerated appeals and the procedures set forth in Subchapter E of Chapter 263 of the Texas Family Code. Tex. Fam. Code Ann. Â§ 263.405(a) (Vernon Supp. 2006). The Department was named as the managing conservator of K.C.B. in the trial court’s final order. As such, this order is an order pursuant to Subchapter E, Chapter 263. Accordingly, any appeal of this final order must comply with the terms of Chapter 263. Chapter 263 requires that a statement of points on which the party intends to appeal be filed with the trial court not later than the 15th day after the trial court enters the final order. Â§ 263.405(b). …

Applying this statutory scheme to the current situation results in the inability of this court to consider any of the issues raised by appellant. The only statement of points for consideration on appeal was filed, not after the final order was entered but rather, after the associate judge’s order was entered. Subsequently, appellant requested and received a trial de novo by the referring court. … There was never a statement of points to be relied upon on appeal filed after the referring court’s final order. Therefore, we may not consider any of appellant’s issues on appeal. …

We again join our sister appellate courts in pointing out the harshness of this procedure. It has once again denied a parent a meaningful right of appeal and needs to be addressed by the legislature.